extent as if it had acquired it by condemnation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 825.]

Appeal from Superior Court, Cumberland County; Webb, Judge.

Action by Festus Beasley against the Aberdeen & Rockfish Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

On May 29, 1890, the Enterprise Land & Improvement Company was incorporated pursuant to the general law of the state. The business proposed to be conducted by the company is stated in the articles of incorporation "to transport and carry for tolls timber, lumber, and produce of all kinds, naval stores, and all kinds of produce and merchandise of every nature and description, and for this purpose may build and operate, if necessary, tramways or other roads, not meaning to include railways, and may generally do all such kinds of work and business," etc. On the 9th day of June, 1890, Malcom McInnis, under whom plaintiff claims title to the land described in the complaint, executed a deed to the said corporation in consideration of $1 and "benefits to be derived," etc., "a free and perpetual right of entry, right of way and easements at any and all times for the purpose of surveying, locating, building etc. the said road, its depots, station houses and bridges in, through and over a strip of land one-hundred and thirty feet wide; that is to say, measuring sixty-five feet on each side of said road." Thereafter the said corporation executed a mortgage on all of its property, right of way, etc., to the Lima Machine Works. The mortgage was foreclosed, and the same property conveyed to Henry M. Sherrin and two others. Such title as they acquired passed to the defendant Aberdeen and Rockfish Railroad Company. Malcom McInnis, on September 14, 1897, conveyed to John Beasley the tract of land over which the right of way was granted, who on January 25, 1898, conveyed to the plaintiff. The evidence, on the part of defendant, tended to show that the Enterprise & Improvement Company built a tramroad of wooden rails across the land. No cuts or fills were made. The testimony on part of plaintiff tended to show that the tramroad was operated two years; that it was discontinued five or six years; that the timber rotted and burned. In 1897-98 it was rebuilt and operated about two years. This was by Sherrin and Campbell. It was not operated when plaintiff bought the land. After the Enterprise & Improvement Company quit operating, it was destroyed by every one who owned the land on it. Other persons had conveyed rights of way. In two or three years after Sherrin and Campbell ceased operating, defendant entered and built a railway, standard gauge, on the right of way and are now operating it, hauling freight and passengers. Defendant has been operat

ing a railroad for about three years. This action is brought to recover damages for the entry upon, and appropriation of, the roadbed by defendant. His honor, being of the opinion that plaintiff was not entitled to recover, so instructed the jury. Plaintiff excepted. Judgment for defendant. Appeal by plaintiff.

Sinclair & Dye and J. S. Newton, for appellant. Robinson & Shaw, for defendant.

CONNOR, J. (after stating the facts as above). It is conceded that the deed from Malcom McInnis to John Beasley, under which plaintiff claims, covers the tract of land described in the complaint, over which defendant has constructed its track and is now operating the business of a common carrier. The right of the plaintiff, therefore, to maintain this action, depends upon the answer to the second issue: "Is the plaintiff the owner of the strip of land mentioned and referred to in the complaint?" His honor instructed the jury to answer the issue "No." In any aspect of the case this was errordoubtless inadvertent on the part of the court and counsel. The utmost which defendant could claim under the deed from McInnis to the improvement company, through which it deraigns its title, is an easement to use so much of the strip of 130 feet as is necessary to construct and operate its road. Railroad v. Olive, 142 N. C. 257, 55 S. E. 263, and cases cited. No land is conveyed but a "right of way" and easement. The title to the land, subject to such easement, remained in McInnis and passed to plaintiff. The real questions, however, presented in the record and argued before us, are (1) the extent and character of the easement, and (2) whether it has been lost by abandonment.

De

Plaintiff seeks, in this action, to recover damages, or, speaking more accurately, compensation, for the entry upon his land and subjecting it to the burden of defendant's railroad track. He concedes that the land may be subjected to the burden by defendant, in the exercise of the right of eminent domain, by proper proceeding. He alleges, however, that its entry was a trespass. fendant, on the other hand, insists that, by the deed from McInnis to the improvement company, a perpetual easement passed, entitling the grantee and its successors to build, maintain, and operate a railroad, of standard gauge, and used for the purpose of carrying freight and passengers. The solution of this question depends upon the construction of the deed. It will be observed that the charter of the improvement company was obtained under the provisions of the general law then in force (Code 1883, § 677), and not under statute providing for incorporating railroad companies. Chapter 16, § 677, expressly excepts from the corporate powers granted building railroads. The charter empowers the company "to build and operate, if necessary, tram ways or other roads, not meaning rail

ways." The deed from McInnis contains the following recital: "Whereas the party of the second part contemplates building a tram or railroad," etc. The words of the grant are: "A free right of entry, right of way, etc., for the purpose of locating said road, its depots, station houses, bridges, etc., necessary and convenient for the use, operating and business of said road." Pursuant to this grant made in 1890, the improvement company constructed a wooden tramway over the land. After using it some time, having mortgaged its property and easements, they passed into the hands of natural persons, who used it for about two years, and "quit operating it about 1900." Thereafter the defendant corporation, conceded to have power to build and operate a railroad, as a common carrier, acquired such right as passed to the improvement company, and proceeded to build and operate a railroad over the land owned by plaintiff. Before defendant acquired the easement, the wooden tramway had practically disappeared-been burned or had rotted. It is manifest that the improve ment company had no power to build or operate a railroad, and therefore no capacity to take and use an easement for that purpose. If it had attempted to do so, its acts would have been ultra vires, and, at the suit of the state, its charter forfeited. The deed, if construed to grant such power, would have been, in such suit, declared void, and, as the consideration was contemplated "benefits" from the road, the easement been at an end. It is settled by the decisions of this court, although held otherwise by the Supreme Court of the United States and other state courts, that the right to avoid the deed is confined to the state. Womack, Private Corporations, § 132 et seq., where the authorities are collected and commented upon. We are of the opinion, however, that by a proper construction of the deed no easement passed other than the company was authorized to take and use. The words "tram or railroads" should not be so construed as to invalidate the grant. It may well be that they were used as synonymous. The word "railroad," while in general use understood to signify a road constructed of cross-ties, upon which iron rails are placed and dedicated to public use under the general law regulating public highways, may well be construed, as used in the deed, as a private road, such as the improvement company was authorized to construct, with iron rails. So understood, it would be but a tramway, built of iron, instead of wooden, rails. This construction conforms to the charter and the evident intention of the parties as manifested by their conduct. It is an elementary rule of construction that parties will be presumed to have used language effectuating a lawful purpose rather than one which is unlawful. We must assume that the owners of the Enterprise & Improvement Company intended to preserve the powers conferred by their charter, than to expose their

corporation to a suit by the state for acting ultra vires. We have construed such grants of easements to railroads as conveying no more than may be reasonably within the contemplation of the parties. Hodges v. Telegraph Co., 133 N. C. 225, 45 S. E. 572.

Illustrating the principle, Redfield, C. J., in Hill v. Railroad, 32 Vt. 68, says: "A contract to convey land for a particular use or to a party having capacity to acquire a certain estate in land for a particular use must of necessity carry the implication of such limitation upon the estate to be conveyed." The grant of such easement as is necessary or convenient for the operation of "said road" should be confined to such "tram or railroad" as the charter authorized the grantee to construct and operate. As said by Battle, J., in Railroad v. Garrison, 74 Ark. 136, 85 S. W. 81: "The right of way for a tramway does not imply the right to construct and operate a railroad. The owner of the land might be willing to waive compensation for the first when he would not for the latter." It is a matter of common observation that tramways, or, as sometimes called, railroads constructed by lumber companies for a temporary purpose, destroying but little timber, requiring no cuts or fills, are of little damage to lands. Many persons, either for some benefit accruing or to aid and encourage improvement, give such right of way who would be surprised to find that they had thereby imposed a permanent burden upon their lands, with much larger powers and much greater injury incident to the building and operation of a railroad than they contemplated. In this case it is in evidence that at the time plaintiff purchased the land the tramway had disappeared. There was nothing more than a "waggon-road" where the tramway had been. We think that it would be doing violence to the language of the charter of the improvement company, the language of the deed, and the intention of the parties to hold that a permanent easement for the construction and operation of a railroad was granted. By construing the language of the deed as granting a right of way for a tramway, we avoid these difficulties and relieve the land of a burden which the company had no right to impose, and we do not think the grantor intended to create.

This view of the case renders it unnecessary to discuss a number of interesting questions raised upon the record. The plaintiff is entitled to recover of defendant a fair compensation for the injury done his land by entering upon it and constructing the railroad. When this is fixed and paid, the defendant will acquire the easement to use the land in the same manner, for the same purpose, and to the same extent as if it had acquired the easement by condemnation. Brown v. Power Co., 140 N. C. 333, 52 S. E. 954, 3 L. R. A. (N. S.) 912.

We think that there was evidence proper to be submitted to the jury upon the question of

abandonment of the easement, but, as the view which we take of the record entitles the plaintiff to recover, it is unnecessary to discuss that question. There must be a new trial.

SMITH v. MOORE.

(Supreme Court of North Carolina. Oct. 23, 1907.)

1. TRIAL-VERDICT-CONFLICT.

In an action to set aside a deed, it was alleged that defendant's testator, aided by counsel for plaintiff and her mother, had caused them to execute a deed conveying certain property to testator absolutely, instead of a will which they intended to make, which would have left the property to testator after their death. A verdict found the issue as to intentional fraud in the affirmative, but added that the jury distinctly exonerated testator of any intentional fraud; it being agreed that the finding was necessary under the charge of the court as to the law, and that the guilt was legal, and not moral, and the evidence showing that it was the purpose of plaintiff and her mother that the property in question should go to testator and his heirs after the death of both plaintiff and her mother. Held, that the verdict was conflicting and insufficient to sustain a judgment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 857-860.J

2. SAME-INSTRUCTIONS.

Plaintiff and her mother executed a deed to testator which plaintiff alleged both believed to be a will leaving the property to testator after the death of both plaintiff and her mother. After execution of the deed, testator executed a life lease to plaintiff and her mother reserving a peppercorn rent. On an issue as to the validity of such deed, one of the jurors asked the court if the lease was found to be valid, whether plaintiff and her mother would be entitled to the rents of the property for life. Held, that the court should have answered such question in the affirmative, instead of giving a nonresponsive charge, which might lead the jury to think that the court was of the contrary opinion.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 569.]

Appeal from Superior Court, New Hanover County; W. R. Allen, Judge.

Action by Louise B. Smith against Susan E. Moore as executrix of the estate of Roger Moore, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

Bellamy & Bellamy, H. McClammy, and Rountree & Carr, for appellant. E. K. Bryan and J. D. Bellamy & Son, for appellee.

CLARK, C. J. This case was before us (142 N. C. 277, 55 S. E. 275, 7 L. R. A. [N. S.] 684), when a new trial was granted. It is not necessary again to set out the facts in full.

The cause of action alleged in the complaint is that on or about March, 1885, Roger Moore, the testator of the defendant, Susan E. Moore, and ancestor of the other defendants, being the confidential friend and adviser of the plaintiff and her mother, Mary E. Smith, induced and persuaded the said Mary E. Smith and this plaintiff to execute

and deliver to him a certain deed conveying to him a lot of land and premises in fee simple, in the city of Wilmington, and at the time he procured the execution of the said deed he procured the same by falsely and fraudulently representing to this plaintiff and her mother, the said Mary E. Smith, that the said deed was a will whereby they would leave the said property to him after their death, and thereupon the plaintiff and her mother, relying upon the said representation, and verily believing the said instrument to be a will, executed the same; that the plaintiff did not discover or know that the said instrument was not a will but a deed until some time after the death of Roger Moore, when the defendants demanded possession of the said premises from the plaintiff, telling her that she had conveyed the same to the said Roger Moore, and threatening to have this plaintiff ejected from the same if she did not surrender the possession thereof. These allegations were denied by the defendants. On the new trial from which this appeal is taken, the following issue was submitted to the jury: "Was the deed of March 3, 1885, by Mary E. Smith and Louise B. Smith to Roger Moore, procured by fraud?" To which the jury replied, "Yes." At the time the issue above was answered as above set out, the jury attached to the same a separate piece of paper, and asked the court to consider the same in connection with their verdict thus rendered, whereon was written the following words: "In answering the issue in this case 'Yes,' we distinctly exonerate Col. Roger Moore of any intentional fraud; it being agreed that the finding is made necessary under the charge of the court as to the law, and that the guilt is legal and not moral. We think the evidence shows conclusively that it was the wish and purpose of both Mrs. M. E. Smith and Louise B. Smith that the property in question should go to Roger Moore and his heirs after the death of both of them"-which entry was made on the records by order of the judge.

The only fraud alleged in the procurement of the deed of March 3, 1885, was that the deed was substituted for the will by the fraudulent practices of Col. Moore, aided by Mr. Cutlar, the counsel for plaintiff and her mother. This appears throughout plaintiff's evidence and in the argument of plaintiff's counsel to the jury as stated by the court in the charge when arraying the contentions of the parties. This is a charge of the plainest and grossest moral fraud. It was not a case of legal, as distinguished from moral, fraud. The verdict of the jury, in effect, says that yielding to the instructions of the court as to the law they are compelled to find that the deed was procured by fraud, but that they are compelled upon the evidence to find that there was no intentional or moral fraud on the part of Coi. Moore, and that it was the wish and purpose of

both Mrs. M. E. Smith and Louise B. Smith that the property in question should go to Roger Moore and his heirs after the death of both of them-a purpose which is effectuated by the deed and lease called in question by this action. The issue was tried as one of moral, intentional fraud. The verdict answers "Yes," and then contradicts this finding by recording, as a part of the verdict, that Col. Moore was not guilty of intentional fraud. The finding is palpably contradictory, and no judgment can be based upon it. It is impossible that a lawyer could have "unintentionally" drawn a deed for a will, especially when he conveyed a life estate back to the grantors by executing a lease reserving a peppercorn rent.

One of the jurors, before the jury withdrew, asked the court the following question: "If the lease written March 15, 1885, is found by the jury to be valid, would the life tenants under that lease be entitled to the rents of this property?" The court erred in not answering the question "Yes," instead of the charge given, which was not only not responsive, but probably had the effect, we think, to lead the jury to think the court was of the contrary opinion.

Where bond was given for the appearance of H. to answer a criminal charge, it was no defense to the surety that H. failed to appear. because at the time he was called he was incarcerated for drunkenness in the town lockup; H. not having been produced during the term after his release from the lockup, and his bond not having been renewed.

Appeal from Superior Court, Scotland County; Councill, Judge.

Action by the state against B. F. Holt and others on an appearance bond. From a judgment for plaintiff, defendants appeal. Affirmed.

H. H. McLendon, for appellants. Hayden Clement, Asst. Atty. Gen., for the State.

CLARK, C. J. Scl. fa. against Holt, principal, and Ballard, surety, on appearance bond. The defendant was called on Wednesday of April term, and judgment nisi and capias ordered. It was issued July 10th, and served on surety, the principal not found, having become a fugitive from justice on another charge. On motion for judgment absolute the surety, Ballard, answered that Holt did not appear in court on Wednesday when called, because he could not, being under arrest in the town lockup, and that, as soon as released, he came to the courthouse, but found that his case had been continued. The solicitor replied that Holt had not renewed his bond after being called out; that he had not attended court after the sci. fa. issued, and was now a fugitive from the state; that when called out said Holt was in town custody on a charge of being drunk and disorderly.

It is very true, as Sir Boyle Roche said in the Irish Parliament, that "no man can be in two places at the same time, barring he is a bird," and that Holt could not be down and drunk in the town guardhouse and at the same instant soberly and seriously conducting his defense in the superior court. But he had no business to be drunk. His be ing in town custody was neither "the act of God nor the public enemy." He could not plead his own wrong. The surety, Ballard, says he was not surety that Holt should keep sober and out of custody of the law on some other charge; hence he is not responsible for Holt not appearing on Wednesday when called. If that be conceded, the surety, Ballard, was nevertheless not discharged from liability on the bond until Holt renewed his bond or appeared and stood his trial. The continuance of the case, unless the bond is renewed, does not discharge the surety. State v. Morgan, 136 N. C. 602, 48 S. E. 670. The judgment nisi did not discharge the surety, for that was a conditional judgment against both the principal and surety, with opportunity to show cause why it should not be made absolute. If sufficient excuse has been shown for the failure to answer on Wednesday, none has been shown why Holt did not give bond during the term after his release or later. The liability of the surety is a continuing one until discharged by renewing the bond or production of the prisoner and surrendering him into custody. Certainly a defendant cannot relieve himself and surety by getting drunk and in arrest, and then avoid all consequences by taking flight when released from that arrest. The town authorities may not have known of Holt being bound over to court. If they did, it was not their duty, but his surety's, who had so contracted, to deliver him to the court when called for. The judgment absolute is affirmed.

BOWIE v. WESTERN UNION TELE

GRAPH CO.

(Supreme Court of South Carolina. Oct. 31. 1907.)

1. TELEGRAPHS - LIMITATION OF LIABILITY WAIVER ACCEPTANCE OF MESSAGES OVER TELEPHONE.

While a reasonable stipulation on a telegraph company's message blank, limiting its liability for messages to those presented and accepted at its transmitting offices is binding upon the sender with notice thereof, yet, where a message is received at the office over a telephone and is transmitted by the company to the sendee, the company will be held to have waived the regulation by inviting the delivery of messages in another way, where it does not appear that the sender assented to any stipulation limiting the company's liability for messages so received, nor knew that a stipulation was contained on its message blank, nor intended the message to be written on the blank.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones. §§ 39, 45.] 2. SAME - MISTAKE IN MESSAGE - ACTION MEASURE OF DAMAGES.

Where a person bought flour on the faith of an erroneous telegram in which it was offered at $4.30 per barrel, instead of $4.60 as intended by the sender, and afterwards had to pay the higher price for the same flour, the measure of damages for which the telegraph company is liable is the difference between the market value and the price stated in the message.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 72.] 3. EVIDENCE-MARKET VALUE-QUOTATIONS.

Where a mill company's quotation for flour delivered at a place was the only evidence of market value there, and its good faith and cor rectness were not questioned, it was proper to take it as the true market value in computing damages for a mistake in sending a telegram quoting prices.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20. Evidence, § 259.]

Appeal from Common Pleas Circuit Court of Abbeville County; James Aldrich, Judge. Action by J. S. Bowie against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. H. Fearrons, Frank B. Gary, and Evans & Finlay, for appellants. J. F. Lyon and M. P. De Bruhl, for respondents.

WOODS, J. The defendant telegraph company on August 3, 1904, delivered to the plaintiff, a wholesale grocer and commission merchant at Abbeville, S. C., a telegram offering flour for sale, in these words: "El Reno, O. T., Aug. 3, 1904. To J. S. Bowie, Abbeville S. C. Will book at four thirty in sacks delivered. Our lowest limit. Market advancing rapidly. El Reno Mill E. Company." The plaintiff immediately telegraphed acceptance in these words: "August 3, 1904. To El Reno Mill & Elevator Co., El Reno, Okla. T. Accept three hundred barrels Wigwarm as quoted. Writing. J. S. Bowie." The plaintiff on the faith of his trade immediately resold the flour on the Abbeville market at $4.40, being a profit of 10 cents per barrel on the price stated in the tele59 S.E.-5

gram delivered. When the flour arrived, the plaintiff found the El Reno Mill & Elevator Company had drawn a draft with the bill of lading attached for the price computed at $4.60 a barrel, instead of $4.30 as stated in the telegram received. The plaintiff paid the draft, and delivered the flour on his contracts of sale. He then brought this action, alleging the telegram as delivered to the defendant company was an offer to sell flour at $4.60 per barrel, and that he had been misled and damaged $90 by reason of the defendant's negligence in changing the offer in transmission to $4.30 per barrel. The verdict was for $90, the whole amount claimed.

The message having been sent to the defendant company and accepted by its agent at El Reno by telephone, the defendant relied on this stipulation in its message blank to exempt it from liability for any mistake In the transmission: "No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the company's messengers, he acts for that purpose as the agent of the sender." On this point the circuit judge, at the request of the plaintiff, gave this instruction: "If a message is received at the office of a telegraph company over the telephone and is transmitted by the telegraph company to the sendee, it is presumed to be properly delivered to and accepted by the telegraph company for transmission." There was no evidence that the sender assented to the stipulation or knew it was written on the company's blank, or that he intended or expected the message to be written on the blank. In the absence of such evidence, we can see no ground whatever for the company to say a delivery and acceptance over a telephone kept in its office was not a proper delivery. Certainly the defendant has no right to complain when the circuit judge, assuming that there might be some evidence bringing the stipulation home to the sender, in response to the defendant's request, charged if the regulation on the message blank was reasonable, and brought to the knowledge of the sender he would be bound by it and the company would incur no liability in reference to the telegram until it had been presented and accepted at one of its transmitting offices, unless the company had seen fit to waive the regulation by inviting or encouraging the sender or the public to deliver to it messages in some other way. The court instructed the jury, if the defendant did not make the mistake in the telegram, then it was not liable at all. The verdict for any amount is therefore a finding that the mistake was made by the defendant.

The other question in the cause is whether the following instruction, as to the measure of damages, was correct under the facts of this case: "If the jury find the plaintiff bought flour on faith of a telegram